9911796707
TMI Blog1995 (8) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for exhibition in Roopak Cinema, Patna. It is the case of Shiv Prakash, the complainant on behalf of M/s. Ajgevinath Films, that the first accused, namely, M/s. Sapna Enterprises, had contracted on June 22, 1988 to take the film, exhibit the same and account for the proceeds in terms of the contract. Pursuant thereto, M/s. Sapna Enterprises was entrusted with the second copy of the film for exhibition and they exhibited the film from July 1, 1988. But the first accused had not returned the print to the complainant-second respondent with ulterior and dishonest intention to make wrongful gain and to cause wrongful loss to the second respondent. Subsequently, it came to the knowledge of Shiv Prakash that the first accused colluded and consp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant-second respondent made a prima facie case to take cognizance of the offence and issue process to the appellant and others. It is contended for the appellant that the Chief Judicial Magistrate, having entertained the complaint, was required to examine other witnesses, take cognizance and then could have transferred the case, if he so desired, to a competent Magistrate subordinate to him as envisaged by s/92(1) of the Code. But, in this case without taking cognizance, the Chief Judicial Magistrate committed manifest jurisdictional error in transferring the complaint to the Magistrate who took further action therein. We find no force in the contention. Though the Code defines cognizable offence and non-cognizable offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceives the case on transfer and takes cognizance would not become incompetent to do so merely because the sanction of transfer of the case to his file is not in accordance with law. The power to take cognizance has been conferred on a Magistrate by s.190(1) of the Code, and he would not be denuded of this power because the case has come to his file pursuant to some illegal order of the Chief Judicial Magistrate. The former would be excercising his power of taking cognizance even in such a case, because of his having received a complaint constituting the offence. It would not be material, for this purpose, as to how he came to receive the complaint - directly or on transfer from the Chief Judicial Magistrate. We are, therefore, of the op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the firm in their capacity as partners of the complainant firm. On the other hand, the complainant firm entered into a contract with the first accused firm-M/s. Sapna Enterprises, entrusted the second film for exhibition and for accounting the sale proceeds in terms of the contract and to return the film. They had neither accounted for, not returned the film. The first accused, the appellant and Ajit, therefore, were alleged to have committed the offences in question. Under these circumstances, we do not think that the imputations alleged against the appellant have been done in his capacity as a partner of the firm. Whether the offence has been made out, whether he is liable and what are the defences open to him are not matters at t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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